Kirpal Kohli vs Khairati Lal
2019 Latest Caselaw 883 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Reserved on: 06th February, 2019
                                   Pronounced on: 12th February, 2019

+        RC.REV. 444/2018 & CM APPL No.37708/2018
         KIRPAL KOHLI                                  ..... Petitioner
                        Through : Mr.J.S.Vohra, Advocate.
                        versus
         KHAIRATI LAL                              ..... Respondent
                        Through : Mr.Sharvan Dev, Advocate with
                                  respondent.

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. This revision challenges the impugned order dated 10.07.2018 passed by the learned Additional Rent Controller -02 (Central), Tis Hazari Courts, Delhi (hereinafter 'Trial Court') in Eviction Petition E- 110/2016 (New No.110/2016) titled Khairati Lal vs Kirpal Chand Kohli filed by the landlord/respondent herein against the tenant/petitioner under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (DRC Act).

2. The learned Trial Court vide impugned order dismissed the application for leave to defend filed by the petitioner and passed an eviction order in respect of one shop bearing No.171, Subzi Mandi, Main Road, Delhi- 110007 (hereinafter 'tenanted shop').

3. Before coming to the legality of the impugned order, let me first find out the grounds for filing of the eviction petition by the respondent. The respondent has filed the petition under Section 14 (1) (e) DRC Act

alleging to be aged 77 years, suffering from old age diseases and has filed medical papers and that he need the tenanted shop for him as also for his son Ajju Kumar @ Ajay Jain, having done ITI Turner Diploma Course in the year 1997, but is presently unemployed, helping his father/ respondent in his shop. The respondent alleges his son namely Mr.Ajay Jain intends to start his motor parts business and since is now married, he requires to earn his livelihood. Though the respondent has alleged his younger son is doing B.A. is aged 19 years and daughter is aged 12 years; but now says his younger son is 39 years of age and his daughter is married.

4. It was alleged by the respondent that he is having another shop admeasuring 9 x 15 feet at A-62, Vishal Market, J J Colony, New Delhi which is neither sufficient for his business, nor suitable as no conveyance even a rickshaw can enter into the said gali where such shop is located. The respondent alleges the tenanted shop is 9 x 27.6 feet, and is much more suitable for his son to start the business of motor parts.

5. In his leave to defend application, the petitioner/tenant has raised various issues qua the age of the children of the respondent being wrongly mentioned. However, it per se is not a criteria to determine the leave to defend to be granted or not as, even otherwise, the tenanted premises is required for Ajay Jain, who is a married man aged 44 years with twin children and he need to earn his livelihood separately.

6. It is also alleged whole of the property i.e. 168-172, Main Market, Subzi Mandi, Delhi - 110007 is the joint property of the respondent and his nephew - Kamal Jain in ratio of 50:50 and the respondent has sold

shop No.172, Main Market, Subzi Mandi, Delhi - 07 to one Sh.Raj Kumar Jain about 13-14 years ago and now has agreed, either orally or in writing to sell the suit shop to his nephew Kamal Jain. Further, it is alleged ½ share in the first floor of the suit property over Shops No.171- 172 which fell to the share of the respondent was sold by him to Kamal Jain by way of registered sale deed dated 25.05.2012. Thus, it is argued that the respondent does not have any bonafide need as has already sold his share in the first floor of property No.169-172 (supra) to his nephew- Kamal Jain and shop No.172 too.

7. Another contention raised by the petitioner herein is the respondent intend to sell this suit shop also to someone else after getting it vacated from him. Further, it is argued the respondent is also an owner of House No.N-144, Gali No.18, Vishnu Garden, New Delhi and House No.A-62, Vishal Market, New Delhi where a shop admeasuring 15 x 9 feet is situated and said plots are of 25 square yards in a very wide street/ road which can be seen from the photographs filed. It is further stated the petitioner and his son Ajay Jain are doing property dealing business and deal in purchase and sale of properties and hence they do not require the premises bonafidely for starting any alleged motor part business. Reference is also given of various houses which have been allegedly sold through the respondent viz House No.N 149, Vishnu Garden; House No.91A, Block S, Vishnu Garden, New Delhi etc.

8. The respondent also filed a response to the application for leave to defend alleging Kamal Jain is not the real nephew of the respondent and that shop No.172 (supra) was sold about 15 years ago. It is denied he

has ever agreed - orally or in writing - to sell the shop premises to Kamal Jain or to his wife or there is any agreement in this regard, hence it is a vague plea. However, the respondent has admitted he has sold ½ share on the first floor, i.e. upper the roof of shops No.171-172 (supra).

9. The respondent states House No.N144, Vishnu Garden, New Delhi is in the name of his wife and not of respondent. He admits of having a shop admeasuring 15 x 9 feet in House No.A-62, Vishal Market, Delhi. The house admeasures 25 square yards, but it is residential premises and the said shop is not bigger as compared to the tenanted shop. Besides it is in a very narrow road where even a rickshaw or any other vehicle could not enter. It is denied by the respondent he is in the business of sale and purchase of properties and vague allegations have been made in this respect and no document is filed by the petitioner herein to support his submission.

10. In these circumstances, it would be apposite to look into the impugned order to find out as to how the learned Trial Court has dealt with above contentions. The relevant portion of the impugned order notes:-

". 8. Basically the defence raised by the respondent is that there is no bonafide need of the petitioner and the petitioner wants tp sell the shop in question to his nephew Mr. Kamal Jain. This argument raised by Ld. Counsel for the respondent is not tenable in the eyes of law as protection of Section 19 of DRC Act is available with the respondent and if the petitioner after getting the possession of shop in question re- lets or disposes it of or fails to occupy the premises then respondent can very well claim back the possession of the demised premises. The respondent has further stated that already sufficient alternate accommodation is available with the petitioner as he is the owner of H.No. N-144, Vishnu Garden, Delhi and H.no. A-62, Vishal Market, Delhi wherein a shop measuring 15 x 9 fit is also situated. The availability of suit property for the purpose of present bona-fide need has been deemed by the petitioner in his reply as the property no. N- 144, Vishnu Garden, Delhi is an residential property that too in the

name of the wife of the petitioner. So far as the shop situated in property no. A-62, Vishal Market, Delhi is concerned, the same is not suitable for the need of the petitioner as stated by him and the respondent is failed to file any supporting document to show suitability of the said shop for the purpose of present petition. The respondent has also disputed the site plan filed on behalf of the petitioner. However, the respondent has failed to show as to how the said site plan is incorrect and no counter site plan has been filed on behalf of the respondent.

9. According to the respondent, the petitioner is in possession of sufficient alternate accommodation more than his requirement. However, the respondent has failed to support his averments with any supporting document.

On the other hand, the petitioner has very categorically denied the availability of any alternative accommodation as alleged by the respondent. The petitioner has been able to bring supporting documents on record to discard the grounds raised by the respondent in his leave to defend application whereas the respondent has failed to file any supporting documents so as to disbelieve the bonafide need of the petitioner.

It is now well settled law that it is the petitioner himself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioner, in the case in hand, the suit premises is required bonafidely, he is not having any other suitable and reasonable accommodation available with him throughout Delhi.

Moreover, it is also now well settled that the leave to defend not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.

A bald statement without supporting material does not give rise to a triable issue entitling tenant for leave to defend.

10. In my considered opinion, the plea of the respondent is without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity."

11. Before this Court, once again same arguments are being raised, as narrated above. Though the age of the elder son and other children were not stated correctly in the eviction petitioner but it was since clarified by the documents filed by the petitioner himself wherein age of Ajay Jain - being 44 years is shown. As submitted Ajay Jain was married just prior to the filing of eviction petition and is now blessed with twins. It was for

the bonafide need of this son Ajay Jain, the petition was filed. The age of Ajay Jain was never in issue in the eviction petition hence it cannot be said the respondent gave wrong age particulars of his son Ajay. The incorrect age of another son/daughter is thus not relevant. Qua the contention that respondent is doing sale/ purchase of the properties is not duly supported by any alleged document in this respect.

12. Further, it was clarified that House No.N-144, Vishnu Garden, Delhi is owned by the wife of the respondent and he has no legal right to open any shop in such house. Admittedly, shop No. 172 (supra) was sold 15 years ago from prior to the filing of the eviction petition hence this fact is also not relevant. Similarly the sale of ½ share on the upper floor(s) would not make the petition malafide since the requirement is of the shop at the ground floor and per settled law, the shop at the ground floor is much more convenient and profitable for any person than the shops on the upper floors. Though, it was also alleged the respondent has entered into some oral or written agreement to sell in respect of tenanted shop with Kamal Jain but this fact is denied by the respondent. Even the petitioner himself is doubtful if such agreement was in writing or was oral. Even otherwise section 19 of the DRC Act would take care of such a situation as it would come to the aid of tenant in case he vacates the premises and it is sold within three years from the date of handing over of possession.

13. In view of above, no cogent ground is made out for grant of leave to defend. The petitioner has also not been able to show any perversity or illegality in the impugned order. Hence, the petition being devoid of

merit is dismissed. The pending application(s), if any, is also dismissed. No order as to costs.

YOGESH KHANNA, J.

FEBRUARY 12, 2019 M